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Transitional Justice Act amendment draft ready

The government has finally prepared a draft for amending the Act governing the two transitional justice bodies, adhering to the Supreme Court verdict and international standards on transitional justice. The proposal is likely to be tabled in Parliament for endorsement in two weeks.

The draft was prepared three years after the apex court in 2015 struck down a dozen provisions of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014 saying that they were inconsistent with transitional justice norms and practices. The 22-page draft has proposed changes in a majority of 42 clauses of the Act.

The amendments are based on the Comprehensive Peace Agreement, the SC verdict, basic principles of transitional justice, consultation with stakeholders including the international community and the local reality. As per the apex court’s ruling, the draft defines conflict-era cases as “severe” and “others”, denying amnesty in cases under the first category. It says there will be no amnesty for extra-judicial killings, enforced disappearance, rape and torture while those involved in other criminal offences could get conditional reconciliation after fulfilling the given conditions. There would also be no statute of limitation for registering a case against the perpetrators.

It also envisions formation of a special court in consultation with the Judicial Council to look after insurgency cases of crime. Those related to the insurgency and sub judice in district and high courts would be transferred to the special court, which will exercise the authority of both the regular courts. Once the amendment is passed there would be separate units in the two transitional justice bodies for truth-seeking, prosecution, reparation, investigation into serious cases of human rights violation and report preparation.

Preparation of the draft was led by Attorney General Agni Kharel. It also saw involvement of former AG Hari Phuyal, Advocate Radheshyam Adhikari, Nepali Congress leader Ramesh Lekhak and former Maoist leader Khimlal Devkota.

“This is a zero draft which will be revised in accordance with the victims’ recommendations. I urge the victims to provide feedback as soon as possible,” said Minister for Law, Justice and Parliamentary Affairs Sher Bahadur Tamang, unveiling the draft on Thursday for discussion. He said stakeholders including human rights organisations, conflict victims, security forces, political parties the international community were consulted while preparing the draft.

“It’s not possible to conduct detailed probe into all cases. Only emblematic cases can be prosecuted,” said Joint-secretary Ramesh Dahal, while unveiling the draft.

The draft establishes reparation as a right of the victims with the state obliged to guarantee it. The draft says criminal laws will not be attracted to cases of war-era crimes which, according to those involved in the drafting, is the international practice.

Provisions

If any person cooperates in the investigation process and reveals facts, s/he will be considered for reduction in penalty

To be eligible for concession, one has to confess, regret and beg pardon for the wrongs they did, provide the set reparation for victim and commit to not repeating the crime in future

Verdict of Special Court can be challenged in the Supreme Court

No war-era cases will be prosecuted abroad, according to a person involved in the drafting process

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